Case before Vermont Supreme Court presents legal issues not often seen in state, says law professor. Defense argues judge erred in handling of trial after co-defendant accepted plea deal.

Nov. 29, 2012

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Free Press Staff Report

A Washington County man convicted nearly two years ago of repeatedly sexually assaulting his pre-teen stepdaughter has appealed his conviction to the Vermont Supreme Court.

The man, now 43, maintained his innocence through three trials in Vermont Superior Court in Burlington. Last month, the Supreme Court justices heard arguments on whether the man should have been tried separately from his codefendant, the girl’s mother, during their third trial, and whether the judge should have let that trial continue after the girl’s mother accepted a plea deal halfway through the proceeding.

The Burlington Free Press does not identify alleged victims of sex crimes without their consent and is withholding the names of the man and the woman in order to protect the privacy of the girl.

“The case presented lots of issues, legal issues, that we don’t see in Vermont very often,” said Cheryl Hanna, a Vermont Law School professor. “If the conviction withstands appeal, then I think that really gives some moral backing to the prosecution in this case.”

Many other prosecutors, she said, never would have brought the case to trial, given the lack of physical evidence.

“That was a hard case to try, that was what always struck me,” Hanna said. “A lot of prosecutors would not have been as aggressive.”

In 2008, prosecutors charged the stepfather and mother with repeatedly sexually assaulting the girl, and alleged that the mother invited other men home to sexually assault her daughter.

The couple’s first trial ended in a hung jury and the second in a mistrial.

Ahead of the third trial in 2011, the defense team asked the court to try the defendants separately. Judge Michael Kupersmith denied the request, deferring to another judge’s previous decision. In the middle of that trial, the mother, then 43, accepted a deal with prosecutors and pleaded no contest to a lesser charge.

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Although Kupersmith did not tell jurors about the deal, the stepfather’s attorney immediately asked the judge to declare a mistrial, saying jurors would infer that the mother had pleaded guilty and that the stepfather was therefore also guilty. Kupersmith denied that request, and instructed jurors “not to speculate” about the possible reasons for the mother’s absence, and to disregard parts of the alleged victim’s testimony given earlier at trial.

The judge also later rejected the man’s bid for a fourth trial.

During oral arguments before the Vermont Supreme Court Oct. 23, attorney William Nelson, representing the stepfather, said allegations made at trial against the mother unfairly influenced the jury’s opinion of the stepfather.

“The testimony involving the private sexual acts between daughter and mother had a ring of truth that the other allegations did not,” Nelson said. “A jury might say, ‘true in this, true in all.’”

The mother’s plea deal, he said, tainted the jury and shook up the defense team, leaving its one remaining lawyer unprepared to carry on the case.

“The court has not only heard all the evidence, but now, suddenly, an absent chair, and a lawyer who was suddenly burdened with the job of questioning witnesses,” Nelson said.

David Tartter, representing the state, contended the jury would not have automatically presumed the mother, upon leaving the trial, had struck a plea deal.

“It (the case) could have been severed, she could have gotten ill, there could have been some other legal error, jurors don’t know,” Tartter said.

Tartter added that the jury would have followed Kupersmith’s instructions to disregard the mother’s absence while evaluating the evidence against the stepfather.

“If we start assuming that juries do not follow instructions, then I think we have to question the entire jury system,” Tartter said.

At the end of the third trial, jurors convicted the stepfather of two counts of aggravated sexual assault. Kupersmith later sentenced him to serve 40 years to life in prison.

The mother pleaded no contest to sexual assault on a child. Kupersmith found her guilty of the lesser charge, sentenced her to time served in prison — more than three years — and ordered her held until her deportation to England, her native country.

Hanna said she could not predict when the justices will rule on the case. It could take upwards of six months to a year, she said.

If the Supreme Court reverses the lower court’s decision, the case would go back for a fourth trial, Hanna said.